‘I wrote better pleadings in law school’: Trump lawsuit likely to be rejected by courts, experts say

Trump spokesperson claims former president filed the suit ‘in defense of the Constitution, the Office of the President, and the future of our nation ‘

Andrew Feinberg
Monday 18 October 2021 23:58
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The courts are likely to reject the lawsuit former President Donald Trump filed on Monday in hopes of stopping the House of Representatives’ investigation into the 6 January Capitol insurrection

Legal experts and a member of the House January 6th Select Committee told The Independent the lawsuit is more a public relations document than a legal one.

Mr Trump filed the suit on Monday against Representative Bennie Thompson – the Mississippi Democrat leading the Select Committee to Investigate the 6 January attack on the Capitol – as well as the committee itself, the National Archives and Records Administration, and Archivist of the United States David Ferriero, in hopes of blocking the committee from obtaining White House records that could detail what Mr Trump and his advisers were doing before and during a pro-Trump mob’s attack on the Capitol.

Among other things, the suit asks for a court to declare the Presidential Records Act – the post-Watergate law that governs the creation, processing, and storage of White House records during and after a president’s term ends – unconstitutional. Mr Trump is being represented by Jesse Binnall, a Virginia-based lawyer who unsuccessfully tried to help him overturn Nevada’s 2020 election results.

In a statement, Trump spokesperson Taylor Budowich said Mr Trump filed the suit “in defense of the Constitution, the Office of the President, and the future of our nation, all of which the sham Unselect Committee is trying to destroy”. He added that the committee’s efforts are a “Communist-style attempt to silence and destroy America First patriots through this hyper-partisan and illegitimate investigation”.

Bradley Moss, a Washington, DC-based litigator, was blunt in his assessment of the lawsuit’s legal merits.

“I wrote better pleadings in law school,” he said in a text message to The Independent.

Asked to explain further, Mr Moss called the document “an extensive public relations pleading designed to fundraise more than anything else,” and said “much of the commentary in the document is simply unnecessary or irrelevant, and is not how most litigators frame lawsuits”.

“Facts are one thing: endless legal commentary is another and this lawsuit is overflowing with it,” he added.

Norm Eisen, who was the House Judiciary Committee’s counsel during Mr Trump’s first impeachment, called Mr Trump’s lawsuit a “desperate gambit” that is “doomed to fail”.

“It suffers from a central flaw from the first page to the last, which is that it’s constant references to ‘the president,’ it forgets, that that individual is named is now named Joe Biden, not Donald Trump,” he said.

“So it is Joe Biden who determines whether executive privilege applies, not Donald Trump, and therefore, the whole premise of the lawsuit that there is an executive privilege to be protected here fails. And the separation of powers arguments that are asserted in the lawsuit apply to Joe Biden, who is the current president to whom this constitutional doctrine is relevant, period,” he continued. “Donald Trump is an ex-president, one who’s limited rights to give input under about these documents have been fully acquitted and rejected by the Biden administration”.

And Maryland Representative Jamie Raskin – a former constitutional law professor and a member of the January 6th Select Committee – said Mr Trump’s demand that the court overturn the Presidential Records Act “demonstrates his awareness that there that he loses under the Presidential Records Act”.

“He’s attacking the statute is unconstitutional, because he loses under the statute. It’s not up to him. It’s up to the President. And he simply has no argument,” Mr Raskin told The Independent when reached by phone late on Monday.

“He’s essentially saying: ‘I want to try to keep this criminal plot secret, because it was within the realm of presidential secrets,’” Mr Raskin continued.

“But in any event, under the Constitution … the President’s role is to take care of that the laws are faithfully executed. Violent insurrection is the opposite,” he said. “Trump is essentially asserting that he has the constitutional authority to overthrow the government, and then to keep secret all of his plans to do so when it fails”.

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